A Review of the Legal Research and Legal Topics Presented at SIOP

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1 A Review of the Legal Research and Legal Topics Presented at SIOP Elizabeth McChrystal Florida Institute of Technology Editor s Note: In order to highlight aspects of the conference in this issue of TIP, Elizabeth McChrystal agreed to provide an overview of the presentations on legal topics. Legal issues were a predominant theme at the 20th Annual SIOP Conference. Of the 16 legal issue topics presented, 6 were poster presentations, 4 were symposiums, 2 were master tutorials, 2 were panel discussions, 1 was a practitioner forum, and 1 was a preconference workshop. A broad spectrum of topics was covered. Although scheduling conflicts prevented me from attending each event, provided is a general overview of the legal issues presented. Greater focus will be placed on the sessions I attended or about which I was able to collect information. The review of the legal issues presented at SIOP is organized in the following fashion. First, major issues and overview of EEO law are provided. In this section, legal presentations that covered more than one legal topic are discussed. Second, other sessions that focused on a single legal issue are discussed. Third, a popular topic with the most sessions and/or presentations is discussed. Finally, the review concludes with a short discussion on continued research in the area and questions to be addressed. Major Issues and Overview of the EEO Law As one might expect, several presenters provided a thorough overview of the laws that govern workplace affairs. Donald Zink (2005a) reviewed Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disability Act of 1990, the Age Discrimination in Employment Act, and the Family Medical Leave Act in his master tutorial. For each law, he identified the legal definition, protected classes, covered entities, administrative procedures, prohibited practices, and remedies for mistreatment. For instance, in review of Title VII, he defines Title VII as prohibition against discrimination by employment agencies and labor organizations on the basis of race, color, religion, sex, or national origin. The EEOC administrative procedure for filing a claim was also discussed along with the type of claims that can be filed under Title VII such as disparate treatment, adverse impact, sexual harassment, pattern or practice claims, and mixed motive claims. Finally, remedies such as equitable relief and capped legal relief were thoroughly discussed (Zink, 2005a). Frank Landy chaired a symposium on the trends and major issues in employment litigation discrimination (Landy, 2005a). In this symposium, Donald Zink (2005b) provided an overview of discrimination filings with an The Industrial-Organizational Psychologist 151

2 emphasis on sexual harassment discrimination filings. Zink provided evidence of an upward trend for complaints filed from 1992 to He suggested the trend results from increased awareness towards sexual harassment, evolution of sexual harassment law, and an increased number of minorities and women in the workplace (Zink, 2005b). Margaret Stockdale (2005) provided an overview of disparate treatment because of sex, reviewed the bona fide occupational qualification for sex, and discussed sex stereotyping issues in sex discrimination claims. James Outtz (2005) focused on race discrimination in the workplace. He discussed trends in race discrimination, types of race discrimination, remedies for the wrongful acts, and concluded with advice for both the applicant and employees on how to defend against racial discrimination. Arthur Gutman (2005a) focused on Internet recruitment and selection. Specifically, he reviewed the differences between adverse impact and pattern or practice and the EEOC new definition for an applicant. Next, he discussed Internet applicants, traditional applicant settings and the potential for affirmative action, adverse impact, and pattern or practice claims. Based on these examples, he concluded with recommendations for recruiting and selection (Gutman, 2005a). The concept of the Internet applicant was further explored in a panel discussion chaired by Douglas Reynolds (Reynolds, Campion, Jayne, Miaskioff, & McPhail, 2005). A preconference workshop, held by Frank Landy and David Copus (2005), covered a wide array of legal topics. Specifically, the workshop provided a review of recent federal court cases associated with protected classes, discussed statistical issues with setting cut scores, reviewed federal judges perspectives of I-O psychology and expert testimony, and covered lawyer challenges to the Daubert Principle in the admissibility of expert testimony. Frank Landy also chaired a symposium on expert testimony (Landy, 2005b). In this symposium, George Thornton III (2005) discussed the judicial guidelines for expert qualification in court cases and the admissibility of expert and scientific evidence. Specifically, he discussed the Daubert Principles. In terms of admissibility of evidence, he explained the importance of I-O experts presenting relevant and reliable information to the courts. In addition, he discussed the increased scrutiny I-O experts are exposed to by the opponent s attorney. He concluded with recommendations for I-O psychologists who would like to become or are expert witnesses. Based on interviews with 11 judges, Landy (2005c) discussed expert testimony from the judges perspective. The main issues that emerged were the Daubert Principles, process for expert selection, what constitutes a compelling testimony, and positive and negative characteristics of an expert witness. David Copus (2005) discussed social science testimony in court cases. Specifically, he discussed the concept of junk science, which is the admissibility of expert testimony in court cases. He discussed possible reasons for exclusion of expert testimony from his perspective as a lawyer in employment discrimination claims. Honorable Paul Grimm 152 July 2005 Volume 43 Number 1

3 (2005), U.S. Magistrate Judge, District of Maryland, further discussed expert testimony in the judicial systems. Specifically, he reviewed the definition of an expert, expert qualifications, when expert testimony is introduced, and admissibility and credibility of testimony (fact vs. opinion). Barbara Gutek (2005) concluded with some personal experiences as an I-O expert witness for sexual harassment claims. She discussed the issues of I-O research and its application to expert testimony. She concluded with recommendations to expand I-O research to benefit expert testimony. Recommendations for research involved answering questions to topics/issues that have been challenged, including ecological validity designs, replication, and generalization of results. Other Sessions This section covers other legal issues presented in various formats at SIOP. The concept of research for legal challenges was discussed in a panel chaired by Mark Schmit (Schmit, Pulakos, Farr, Denning, Gutman, & Kirkpatrick, 2005). The discussion was on utilizing retrospective research as a method to support large complex organizations faced with legal challenges. Michael Harris chaired a symposium on recent class action discrimination lawsuits and the role I-O psychologists may play in similar lawsuits (Harris, 2005). Jerard Kehoe chaired a symposium on cut scores in employee discrimination. In this symposium, the panel of experts compared current cut score methodology to legal criteria and reviewed key issues in cut scores that have emerged from recent court decisions (Kehoe, 2005). On a similar track to cut scores, Leslie Charles Pedigo and Elizabeth Shoenfelt reviewed cognitive ability testing court decisions in their poster presentation. The review found that the majority of cognitive ability related lawsuits involved claims of racial discrimination. They also found organizations that utilized validated, professionally developed tests, and set cut scores based on the results of the validation prevailed more often than not (Pedigo & Shoenfelt, 2005). Most Popular Topic: Sexual Harassment The most popular topic in legal issues was sexual harassment. It was addressed in seven or more of the presentations. The areas of sexual harassment covered included an overview of sexual harassment law, review and understanding of sexual harassment law, and individual s perceptions and evaluations of sexual harassment. Arthur Gutman (2005b) provided a thorough overview of sexual harassment in his master tutorial. During this session, he clarified the legal definition of sexual harassment, carefully delineated between quid pro quo and hostile environment harassment, discussed scenarios for employer liability, and presented standards for proving sexual harassment. He concluded with recommendations for employment policies. Specifically, he discussed vicar- The Industrial-Organizational Psychologist 153

4 ious liability with affirmative defense for hostile environment claims. Vicarious liability with an affirmative defense means that the organization is responsible for the illegal actions committed by supervisors if the organization fails to raise an affirmative defense. When sexual harassment by a supervisor results in a hostile environment, but does not result in tangible employment consequences, an employer can avoid liability by proving that the company had a mechanism in place to prevent and correct sexual harassment and that the alleged victim failed to file the complaint with the appropriate personnel or take advantage of other preventive avenues (Gutman, 2005b). Areview of sexual harassment law was discussed in a poster session by Arthur Gutman and me. In this poster, we empirically investigated employee knowledge of sexual harassment law and concluded that the legal definition is counterintuitive and difficult for employees to understand (McChrystal & Gutman, 2005a). Many of the sexual harassment researchers at SIOP this year investigated how individuals evaluate and perceive sexual harassment in the workplace. A poster session by Elizabeth Shoenfelt and Kathleen Nickel investigated the effects of intoxication on individual and jury perceptions. They found that intoxication may bias an individual and jury decision in a sexual harassment case. Specifically, they found that intoxication impacts individual and jury judgment from both the plaintiff and defendant perspectives. Intoxicated defendants were more likely to be found guilty, and intoxicated plaintiffs were less likely to be viewed as victims of sexual harassment (Shoenfelt & Nickel, 2005). Arthur Gutman and I viewed sexual harassment from the legal perspectives. We investigated whether individuals differently perceive various behavioral scenarios as harassing from the reasonable-person and reasonablevictim perspectives. It appears the victim standard lowers the threshold of unacceptable workplace behavior, and gender served as a moderator for the standards and ambiguous behavior (McChrystal & Gutman, 2005b). Richard Wiener and Roni Reiter-Palmon co-chaired a symposium on how situational and dispositional factors impact an individual s judgment towards a sexual harassment claim and how these factors converge or diverge with sexual harassment law (Wiener & Reiter-Palmon, 2005). Some of the factors investigated were agreement and disagreement between the legal standards, ethical standards, dissolved workplace romances, and the impact contradicting attitudes have on an individual s evaluation of a particular situation. The impact gender and personality characteristics (e.g., empathy, perspective taking, fantasy, and distress) have on the perception of sexual harassment, and how these factors might affect outcomes from the different legal perspectives was also addressed. To conclude, a model to separate psychological injury from hostile environment sexual harassment law was introduced and discussed. Finally, a poster session by Karen Harris, Robert Intrieri, and Dennis Papini (2005) assessed the applicability of the sexual experience questionnaire to adolescents in the workplace and found it to be psychometrically sound. 154 July 2005 Volume 43 Number 1

5 Conclusion Based on the review of legal topics presented, I believe there are many areas for continued research and discussion. The impact of Internet selection on employment decisions should continue to be investigated. Possible new areas involve investigating the impact Internet selection has on adverse impact and affirmative action. Sexual harassment research continues to grow and should continue to research same-sex harassment scenarios. Comparing and contrasting employment law across different countries is another area of promising research growth. From a global standpoint, it is interesting and definitely relevant to learn how other countries govern workplace relationships. A poster session by Sara Turken and Lisa Nishii (2005) compared and contrasted employment law across 57 countries and found that employment law is heavily influenced by the cultural environment. Finally, questions pertaining to legal issues center on expert witness topics and ADEA. How do you become an expert witness? Is there a recommended track for becoming an expert witness? Is the recent ADEA ruling going to increase the number of ADEA filings? To conclude, the various legal topics presented at the SIOP conference were very interesting and informative. References Copus, D. (2005, April). Expert testimony by psychologists in employment cases: The curious history of stereotyping. In F. Landy (Chair), The views of lawyers and judges on I-O expert testimony. Symposium conducted at the 20th Annual Conference of the Society for Industrial and Organizational Grimm, P. (2005, April). The judicial view of expert testimony. In F. Landy (Chair), The views of lawyers and judges on I-O expert testimony. Symposium conducted at the 20th Annual Conference of the Society for Industrial and Organizational Gutek, B. (2005, April). Discussant. In F. Landy (Chair), The views of lawyers and judges on I-O expert testimony. Symposium conducted at the 20th Annual Conference of the Society for Industrial and Organizational Gutman, A. (2005a, April). Internet recruitment and selection: New rules? In F. Landy (Chair), Major issues in employment litigation discrimination. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational Gutman, A. (2005b, April). Sexual harassment: Legal issues & implications for employer policies. Master tutorial presented at the 20th Annual Conference of the Society for Industrial and Organizational Harris, K., Intrieri, R., & Papini, D. (2005, April). Measuring sexual harassment of adolescents in early labor force experience. Poster session presented at the 20th Annual Conference of the Society for Industrial and Organizational Harris, M. (Chair). (2005, April). Wal-Mart, Costco, and UPS: I-O psychology and class certification lawsuits. Practitioner forum conducted at the 20th Annual Conference of the Society for Industrial and Organizational Kehoe, J. (Chair). (2005, April). Cut scores in employment discrimination: Where we are today. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational The Industrial-Organizational Psychologist 155

6 Landy, F. (Chair). (2005a, April). Major issues in employment litigation discrimination. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational Landy, F. (Chair). (2005b, April). The views of lawyers and judges on I-O expert testimony. Symposium conducted at the 20th Annual Conference of the Society for Industrial and Organizational Landy, F. (2005c, April). Observations of federal judges on I-O psychologists as expert witnesses. In F. Landy (Chair), The views of lawyers & judges on IO expert testimony. Symposium conducted at the 20th Annual Conference of the Society for Industrial and Organizational Psychology, Los Angeles, CA. Landy, F. & Copus, D. (2005, April). I-O psychologist as expert witness: The challenges of testimony. Preconference workshop at the 20th Annual Conference of the Society for Industrial and Organizational McChrystal, E. & Gutman, A. (2005a, April). Employees understanding of sexual harassment law. Poster session presented at the 20th Annual Conference of the Society for Industrial and Organizational McChrystal, E. & Gutman, A. (2005b, April). The legal perspectives of sexual harassment. Poster session presented at the 20th Annual Conference of the Society for Industrial and Organizational Outtz, J. (2005, April). Race discrimination: Past, present, and future. In F. Landy (Chair), Major issues in employment litigation discrimination. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational Pedigo, L. C. & Shoenfelt, E. (2005, April). A review of cognitive ability testing court decisions since Poster session presented at the 20th Annual Conference of the Society for Industrial and Organizational Reynolds, D., Campion, M., Jayne, M., Miaskioff, C., & McPhail, S. (2005, April). Defining Internet applicant: Current guidance and issues. Panel discussion presented at the 20th Annual Conference of the Society for Industrial and Organizational Schmit, M., Pulakos, E., Farr, J., Denning, D., Gutman, A., Kirkpatrick, M. (2005, April). Retrospective research in complex organizations for legal defensibility. Panel discussion presented at the 20th Annual Conference of the Society for Industrial and Organizational Psychology, Los Angeles, CA. Shoenfelt, E. & Nickel, K. (2005, April). Individual and jury perceptions of sexual harassment: Effects of intoxication. Poster session presented at the 20th Annual Conference of the Society for Industrial and Organizational Stockdale, M. (2005, April). Disparate treatment sex discrimination: More than meets the eye. In F. Landy (Chair), Major issues in employment litigation discrimination. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational Psychology, Los Angeles, CA. Thornton, G. (2005, April). Industrial and organizational psychologists as expert witnesses: Impacting employment discrimination litigation post Daubert. In F. Landy (Chair), The views of lawyers & judges on I-O expert testimony. Symposium conducted at the 20th Annual Conference of the Society for Industrial and Organizational Turken, S. & Nishii, L. (2005, April). The relationship between culture and labor/employment laws across fifty-seven countries. Poster session presented at the 20th Annual Conference of the Society for Industrial and Organizational Wiener, R., & Reiter-Palmon, R. (Chairs). (2005, April). Sexual harassment law and psychology: Agreements & disagreements. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational Zink, D. (2005a, April). Fundamentals of employment law: Concepts and applications. Master tutorial presented at the 20th Annual Conference of the Society for Industrial and Organizational 156 July 2005 Volume 43 Number 1

7 Zink, D. (2005b, April). Trends in employment discrimination charges alleging sexual harassment. In F. Landy (Chair), Major issues in employment litigation discrimination. Symposium presented at the 20th Annual Conference of the Society for Industrial and Organizational 141 SIOP Members have enrolled in the system so far. We're waiting for you! The Industrial-Organizational Psychologist 157